Lindsey could have faced charges, experts believe Potential evidence called more valuable

June 20, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- "Unindicted co-conspirator" -- the sinister-sounding label that the Whitewater prosecution team has applied to Bruce Lindsey -- is a strong sign that he could have been charged with a crime, former prosecutors and other legal experts said yesterday.

"It means they had enough evidence to indict him but made a prosecutorial decision not to do so," said Joseph E. diGenova, a former special federal prosecutor.

The decision, diGenova said, was probably based on a gauge of the strongest way to win guilty verdicts in the trial in Little Rock, Ark., of two men accused of siphoning off bank funds to the 1990 campaign of Bill Clinton for governor.

In Lindsey's case, prosecutors appear to have calculated that his evidence is more important than having him face charges himself.

Lindsey is now sure to play some role in the Arkansas trial, whether or not he appears as a witness. Because he has been named a co-conspirator, Lindsey's comments to those charged in the case can be brought out in court, instead of being barred as hearsay. Those statements could be damaging for the defendants.

According to legal analysts, Lindsey has no guarantee that he might not face criminal charges in the future, depending on where prosecutors go next.

The label puts Lindsey in unflattering company. It links him with the best-known unindicted co-conspirator in modern cases: former President Richard M. Nixon.

The grand jury that investigated crimes growing out of Watergate wanted to charge Nixon. But the special prosecutor persuaded the jurors not to do so, because of uncertainties about prosecuting a sitting president. Instead, jurors voted to name Nixon an unindicted co-conspirator.

Ordinarily, prosecutors who are charging a federal criminal conspiracy ask grand jurors to indict those the prosecutors think can be convicted. If some people suspected of taking part in the conspiracy are not charged with a crime, however, prosecutors can make use of statements they made to those on trial.

Usually, statements one person makes to another outside of court, not subject to lawyers' cross-examination, are barred as evidence because they are considered "hearsay."

But there are exceptions. Statements made out of court by a co-conspirator are not barred as hearsay if the statements were made "during the course of, and in furtherance of, the conspiracy."